FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SARBJIT SINGH, 

Petitioner, No. 03-72494

v. Agency No.  A77-827-217 ALBERTO R. GONZALES,* Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted February 9, 2005**

San Francisco, California

Filed July 29, 2005

Before: J. Clifford Wallace, Johnnie B. Rawlinson, and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Bybee

*Alberto R. Gonzales is substituted for his predecessor, John Ashcroft,

as Attorney General of the United States, pursuant to FED. R. APP. P.

43(c)(2). 

**This panel unanimously finds this case suitable for decision without

oral argument. See FED. R. APP. P. 34(a)(2). 

8801
COUNSEL

Martin Resendez Guajardo, Law Office of Martin Resendez

Guajardo, San Francisco, California, for the petitioner. 

Peter D. Keisler, David Bernal, S. Nicole Nardone, Office of

Immigration Litigation, Civil Division, United States Justice

Department, Washington, D.C., for the respondent. 

OPINION

BYBEE, Circuit Judge: 

This case presents yet another due process challenge to the

Notice of Appeal and summary dismissal procedures

employed by the Board of Immigration Appeals (“BIA”). 

8804 SINGH v. GONZALES
For more than thirty years, BIA regulations have authorized

summary dismissal of appeals for which the petitioner fails to

adequately specify the grounds for error. The regulations were

later amended to also authorize summary dismissal where the

petitioner indicates an intent to file a brief, but subsequently

fails either to file the brief or explain his failure to do so. In

this appeal, the petitioner claims that both regulations operated to violate his due process rights. 

While we have in the past criticized the potential for confusion posed by the BIA’s strict specificity requirement, the

amended regulation authorizing dismissal for failure to file a

brief does not suffer from the same defects. Moreover, the

actions of petitioner’s counsel in this case persuade us that,

rather than a due process violation based on the BIA’s summary dismissal procedures, the petitioner has alleged a classic

case of ineffective assistance of counsel. Accordingly, we

deny petitioner’s due process claim based on the summary

dismissal, but remand to the BIA for further consideration of

his due process ineffective assistance of counsel claim. 

I. BACKGROUND

Sarbjit Singh, a native and citizen of India, was charged as

removable on the ground that he had overstayed his visa.

Singh retained attorney Samuel Maina and applied for asylum, withholding of removal and Convention Against Torture

relief. Each of Singh’s claims were rejected after a hearing in

which the immigration judge (“IJ”) found him not credible

and ordered his removal. 

With Maina’s assistance, Singh filed a Notice of Appeal

with the BIA using form EOIR-26. In the section requesting

the petitioner to “[s]tate in detail the reason(s) for [the]

appeal,” Maina wrote the following: “IJ erred in finding

respondent was not credible and failed to carry his burden.”

Immediately above Maina’s statement, the form contained the

following conspicuous admonition: “WARNING: The failure

SINGH v. GONZALES 8805
to specify the factual or legal basis for the appeal may lead to

summary dismissal without further notice unless you give

specific details in a timely, separate written brief or statement

filed with the board.” Maina checked the box on the form,

termed “Item #6,” indicating that he intended to file a separate

written brief to comply with the regulation. Directly below

this item, another conspicuous instruction read: “WARNING:

Your appeal may be summarily dismissed if you indicate in

Item #6 that you will file a separate written brief or statement

and, within the time set for filing, you fail to file the brief or

statement and do not reasonably explain such failure.” Thereafter, by a separate mailing, the BIA instructed the petitioner

that his brief would be due on or before April 16, 2001. Maina

never filed a brief. 

Almost a year after the briefing deadline passed, the BIA

summarily dismissed Singh’s appeal pursuant to 8 C.F.R.

§ 3.1(d)(2)(i) (2001). The BIA offered two grounds for its

decision: 

Pursuant to our regulations, an appeal may be dismissed where a party indicates “that he or she will

file a brief or statement in support of the appeal and,

thereafter, does not file such a brief or statement, or

reasonably explain his or her failure to do so, within

the time set for filing. . . .” 8 C.F.R. § 3.1(d)(2)(i)(D)

(2001). The Notice of Appeal explicitly warned the

respondent of the regulation, and a briefing schedule

indicating that the respondent’s brief was due on

April 16, 2001, was mailed to the respondent. To

date, the respondent has not submitted a brief or

offered an explanation for the failure to do so. We

thus find that summary dismissal is appropriate

under 8 C.F.R. § 3.1(d)(2)(i)(D). 

In addition, the respondent provided general statements alleging error, but did not specifically identify

those errors. The Board may summarily dismiss an

8806 SINGH v. GONZALES
appeal when the appealing party fails to specify reasons for the appeal. See 8 C.F.R. § 3.1(d)(2)(i)(A). 

In re Sarbjit Singh, A77 827 217, at 1-2 (BIA, March 18,

2002) (citation and footnote omitted). In a footnote, the Board

added: “We find that this case is distinguishable from PadillaAgustin v. INS, 21 F.3d 970 (9th Cir. 1994). In the instant

case, the record reflects that the respondent was placed on

notice that the appeal could be summarily dismissed for failure to timely submit a promised brief or statement.” Id. at 1

& n.1 (citing 8 C.F.R. § 3.1(d)(2)(i)(D)).1

Approximately one year after the summary dismissal was

issued, Singh retained new counsel and moved to reopen his

proceedings, arguing that the summary dismissal violated his

due process rights and that the 90 day deadline for filing a

motion to reopen should be equitably tolled because of his

former counsel’s ineffective assistance.2 In a per curiam order,

the Board rejected the motion as untimely filed without

addressing the equitable tolling argument. Singh timely petitioned this court to review the BIA’s decision. 

In the petition for review that we now consider, Singh reasserts the arguments raised in his motion to reopen; namely,

that the BIA’s summary dismissal violated his due process

rights and that his former counsel’s ineffective assistance rendered his motion to reopen subject to equitable tolling. 

1This regulation is now codified at 8 C.F.R. § 1003.1(d)(2)(i). See 68

Fed. Reg. 9824 (Feb. 28, 2003). 

2Pursuant to 8 C.F.R. § 1003.2(c)(2), a motion to reopen in any case

previously the subject of a final decision by the BIA generally must be

filed no later than 90 days after the date of that decision. Thus, Singh’s

motion was due on or before June 17, 2002. The Board did not receive the

motion until February 28, 2003. 

SINGH v. GONZALES 8807
II. STANDARD OF REVIEW

The regulation at issue here, 8 C.F.R. § 3.1(d)(2)(i) (2001),

states that the BIA “may” summarily dismiss an appeal for

failure to state specific reasons or file a promised brief. Consequently, the Board’s decision whether to dismiss is discretionary. Dismissal for failure to comply with this regulation

is akin to dismissal in a civil case for failure to prosecute,

which we review for abuse of discretion. See, e.g., Link v.

Wabash R. Co., 370 U.S. 626, 633 (1962) (“Whether such an

order can stand on appeal depends not on power but on

whether it was within the permissible range of the court’s discretion.”); Henderson v. Duncan, 779 F.2d 1421, 1423 (9th

Cir. 1986). Accordingly, we will not reverse a dismissal under

8 C.F.R. § 3.1(d)(2)(i) unless the Board has abused its discretion. 

However, the question squarely presented in this case is

whether the summary dismissal violated Singh’s due process

rights. That question is a pure question of law which we

review de novo. See Lopez v. INS., 184 F.3d 1097, 1099 (9th

Cir. 1999) (pure questions of law raised in a petition for

review are reviewed de novo). Finally, we review the denial

of a motion to reopen for abuse of discretion. See Shaar v.

INS, 141 F.3d 953, 955 (9th Cir. 1998). 

III. DISCUSSION

A. Summary Dismissal Procedures

[1] BIA regulations provide for summary dismissal of an

appeal where the party concerned either fails to adequately

specify the reasons for the appeal, or fails to file a brief after

indicating an intent to do so. The particular regulation at issue

in this case read as follows: 

(i) Standards. The Board may summarily dismiss

any appeal or portion of any appeal in any case in

which: 

8808 SINGH v. GONZALES
(A) The party concerned fails to specify the reasons

for the appeal on Form EOIR-26 or Form EOIR-29

(Notices of Appeal) or other document filed therewith; [or] 

. . . 

(D) The party concerned indicates on Form EOIR26 or Form EOIR-29 that he or she will file a brief

or statement in support of the appeal and, thereafter,

does not file such brief or statement, or reasonably

explain his or her failure to do so, within the time set

for filing. . . . 

8 C.F.R. § 3.1(d)(2)(i)(A), (D) (2001). The BIA referenced

both provisions — subpart (A) and subpart (D) — in support

of its order summarily dismissing Singh’s appeal. 

Prior to an amendment, effective January 13, 1994, BIA

regulations did not contain a “briefing sanction” providing

that an appeal can be summarily dismissed if the petitioner

indicates an intent to file a brief and then fails to do so. However, BIA regulations have long contained a “specificity sanction,” providing for summary dismissal where the party fails

to specify the grounds for appeal on the Notice of Appeal

form or in a separate document. See Matter of Holguin, 13 I

& N Dec. 423, 425-26 (BIA 1969). 

Singh concedes that his reasons for appeal were not specific and that no brief was filed as promised by his former

counsel. He argues, however, that both the specificity and

briefing sanctions provided for in BIA regulations operated to

deprive him of due process, as guaranteed by the Fifth

Amendment to the United States Constitution. 

Singh’s argument is not a novel one. Our court has grappled with the BIA’s summary dismissal procedures for nearly

SINGH v. GONZALES 8809
a quarter-century. Thus, a brief examination of our prior cases

analyzing these procedures is useful. 

1. The Specificity Sanction 

In Matter of Valencia, the BIA outlined the specificity

required to avoid summary dismissal: 

It is . . . insufficient to merely assert that the immigration judge improperly found that deportability

had been established or denied. . . . Where eligibility

for discretionary relief is at issue, it should be stated

whether the error relates to grounds of statutory eligibility or to the exercise of discretion. Furthermore,

it should be clear whether the alleged impropriety in

the decision lies with the immigration judge’s interpretation of the facts or his application of legal standards. Where a question of law is presented,

supporting authority should be included, and where

the dispute is on the facts, there should be a discussion of the particular details contested. 

19 I. & N. Dec. 354, 355 (BIA 1986). 

“The purpose of the BIA’s strict specificity requirement is

to ensure that the BIA is adequately apprised of the issues on

appeal so that the BIA is not left to ‘search through the record

and speculate on what possible errors the [petitioner]

claims.’ ” Rojas-Garcia v. Ashcroft, 339 F.3d 814, 820 (9th

Cir. 2003) (quoting Matter of Valencia, 19 I. & N. Dec. at

355) (alteration in original). “If the BIA was forced to decipher general statements of error, unsupported by specific factual or legal references, the BIA would have to spend time

and resources reconstructing the proceedings before the IJ and

building the petitioner’s legal case, in some instances only to

conclude that the appeal was utterly without merit.” Id. at 820

(citation omitted). On the other hand, “when the BIA receives

ample specific advice about the reasons for an appeal, the

8810 SINGH v. GONZALES
BIA can deal promptly with appeals and focus resources on

nonfrivolous appeals to reach a correct resolution.” Id. 

We have, on several occasions, commented on the importance of the specificity requirement and the extent of specificity required. See, e.g., id. at 819-20; Casas-Chavez v. INS, 300

F.3d 1088, 1089-90 (9th Cir. 2002); Toquero v. INS, 956 F.2d

193, 195 (9th Cir. 1992); Escobar-Ramos v. INS, 927 F.2d

482 (9th Cir. 1991); Martinez-Zelaya v. INS, 841 F.2d 294

(9th Cir. 1988); Reyes-Mendoza v. INS, 774 F.2d 1364 (9th

Cir. 1985). See also Athehortua-Vanegas v. INS, 876 F.2d 238

(1st Cir. 1989); Medrano-Villatoro v. INS, 866 F.2d 132 (5th

Cir. 1989); Bonne-Annee v. INS, 810 F.2d 1077 (11th Cir.

1987); Townsend v. INS, 799 F.2d 179 (5th Cir. 1986). 

In Reyes-Mendoza we approved the BIA’s strict interpretation, reasoning that the Notice of Appeal form must “inform

the BIA of what aspects of the IJ’s decision were allegedly

incorrect and why.” 774 F.2d at 1364-65 (concluding summary dismissal was appropriate because a six-word statement

on the Notice of Appeal form inadequately informed the BIA

of the grounds for appeal). See also Martinez-Zelaya, 841

F.2d at 296. In Toquero we confirmed this approval, finding

a description insufficient, and summary dismissal appropriate,

where it merely contained “generalized and conclusory statement[s] about the proceedings before the IJ” and failed to

specify “the particular details contested.” 956 F.2d at 195

(citations omitted); accord Townsend, 799 F.2d at 182. In

Escobar-Ramos we similarly observed that “summary dismissal by the BIA is appropriate if an alien submits no separate written brief or statement to the BIA and inadequately

informs the BIA of what aspects of the IJ’s decision were

allegedly incorrect and why.” 927 F.2d at 484 (quoting

Martinez-Zelaya, 841 F.2d at 296). 

Yet, even in the context of approving the BIA’s summary

dismissal policy in Toquero and Escobar-Ramos, we

expressed some discomfort with the potential inadequacy of

SINGH v. GONZALES 8811
the warnings contained on the BIA’s Notice of Appeal form.

For example, in Toquero we stated: 

[W]e believe the instructions on the Notice of

Appeal are less than clear. For example . . . . [t]he

instructions do not set out . . . the specificity standard used by the BIA in deciding to summarily dismiss an appeal . . . . In fact the form suggests that the

alien need not go into much detail by providing only

a three-inch space on which to state his claim of

error. Moreover, the instructions indicate that the

party is not required to file a brief, yet the BIA has

developed the practice of considering the written

brief in conjunction with the Notice of Appeal in

determining whether summary dismissal is appropriate.

956 F.2d at 197 (citation omitted). Likewise, in EscobarRamos we observed that the BIA’s Notice of Appeal form 

contains the potential for misleading the unwary. It

requires the appellant to “Briefly state reasons for

this appeal.” . . . The instructions on the reverse side

of the form provide that “The Board may deny oral

argument and summarily dismiss any appeal in any

deportation proceeding in which . . . the party concerned fails to specify the reasons for his/her appeal

on the reverse side of the form.” Appellants are

informed that “a brief in support of or in opposition

to an appeal is not required.” The form then supplies

less than three inches of space to provide these reasons for the appeal and does not invite the use of an

additional piece of paper. 

927 F.2d at 484. Noting the strict specificity requirements

outlined by the BIA in Matter of Valencia, 19 I. & N. Dec.

at 355, we found “no indication on the face of [the BIA’s

Notice of Appeal form] or in the instructions on the reverse

8812 SINGH v. GONZALES
side as to the need for this level of specificity.” EscobarRamos, 927 F.2d at 484. 

However, neither case turned on the “clarity of the [Notice

of Appeal form] instructions” alone, but instead depended

upon “an inquiry into the actions taken by Petitioner’s counsel.” Toquero, 956 F.2d at 196-97. In Escobar-Ramos this

inquiry revealed extraordinary circumstances — namely, the

agency’s delay in tendering transcripts, combined with the

collapsed roof and flooding of counsel’s law office — sufficient to excuse counsel’s failure to file a brief with the BIA

or to request an extension of time. 927 F.2d at 484-85. On the

contrary, in Toquero nothing approaching the “extraordinary”

was offered. 956 F.2d at 196. See also Escobar-Ramos, 927

F.2d at 486 (noting that in those cases where we upheld the

BIA’s summary dismissal “no explanation was offered for the

failure to file briefs with the BIA”). Instead, counsel for the

petitioner indicated an intention, on the Notice of Appeal

form, to file a supporting brief, and he quite simply “failed to

follow through with this intention.” Toquero, 956 F.2d at 196.

When presented with these facts, we held that 

counsel had a responsibility to at least file a brief

stating why the Notice was adequate, or explaining

the reasons for appeal. When counsel for Petitioner

did not submit a brief as promised, and then did not

respond to the government’s brief, the BIA could

reasonably assume that Petitioner had either abandoned his appeal or could not explain the deficiency.

Petitioner and his counsel were on notice that the

BIA would exercise its power to summarily dismiss

the appeal. Thus, counsel’s failure to act justified the

BIA’s actions, and weakens any contention that the

procedures used in this case violated due process. 

Id. at 196-97. 

In Padilla-Agustin, however, our concerns, heretofore

merely hypothetical, became concrete, and we had occasion

SINGH v. GONZALES 8813
to give teeth to our prior grumblings. 21 F.3d at 977 (“This

case is the one described in Toquero: it turns on the ‘clarity

of the instructions’ alone.”). In that case the petitioner,

Padilla, a 51-year-old native and citizen of Guatemala,

entered the United States without inspection and was subsequently ordered to show cause why he should not be deported

under former Section 241(a)(2) of the Immigration and

Nationality Act. Proceeding pro se and speaking no English,

Padilla conceded his deportability, designated Guatemala as

the country for his deportation, and applied for asylum, withholding of deportation and voluntary departure. The IJ denied

his claims in toto. Id. at 972. Still representing himself,

Padilla filed a Notice of Appeal using form EOIR-26; he neither attached a supporting brief nor checked the box on the

Notice of Appeal form indicating an intent to do so at a later

date. Instead, on the form, he specified the grounds for appeal

as follows: “I request my Political Asylum request be

accepted because I fled my country in order to save myself

because the Political situation I was persecuted. Now if I

return I’ll be—mistreated or killed I need the chance to stay

in this country until the situation change in my country.” Id.

The BIA summarily dismissed Padilla’s appeal, reasoning that

Padilla “in no meaningful way identified the basis for the

appeal . . . [and] failed to specify any respect in which the

immigration judge’s decision [was] incorrect.” Id. (alternations in original). 

[2] We granted Padilla’s petition for review, concluding

that Padilla “did not receive adequate notice of the potential

for summary dismissal of his appeal.” Id. at 974. Recalling

our prior warnings in Toquero and Escobar-Ramos, we again

decried the fact that the form utilized by the BIA enjoined the

immigrant to brevity without providing sufficient notice to the

unschooled observer of the possibility of dismissal. We stated,

“[p]articularly when the alien is representing himself and has

language difficulties, as is so often the case and is the case

here, a high degree of clarity should be a part of the process

accorded.” Id. at 976 (emphasis in original). Accordingly, we

8814 SINGH v. GONZALES
held that “the concatenation of EOIR-26, the BIA’s strict

Notice of Appeal requirements, and the failure to give any

advance warning before an appeal is dismissed, can result in

a violation of the due process rights of the alien” and “[i]t did

so here.” Id. at 977 (emphasis added). 

We have on other occasions held that the BIA’s strict specificity requirement, when combined with BIA regulations permitting summary dismissal without notice, can operate to

violate an alien’s due process rights. Each case involved special circumstances, not present in the instant case, which suggested that a “high degree of clarity” was required. CastilloManzanarez v. INS, 65 F.3d 793, 796 (9th Cir. 1995) (involving a petitioner with language difficulties). See also VargasGarcia v. INS, 287 F.3d 882, 885 (9th Cir. 2002) (involving

a pro se petitioner). 

However, in Singh’s case, the BIA did not rely solely on

the specificity sanction. Rather, the BIA’s decision summarily

dismissing Singh’s appeal relied primarily on Singh’s failure

to file a brief after indicating an intent to do so. See In re

Sarbjit Singh, A77 827 217, at 1-2 (BIA, March 18, 2002)

(citing 8 C.F.R. § 3.1(d)(2)(i)(D) (2001), and stating, “To

date, the respondent has not submitted a brief or offered an

explanation for the failure to do so.”). 

2. The Briefing Sanction 

[3] We have never considered whether the BIA’s summary

dismissal procedures violate due process in light of the

amended regulation, 8 C.F.R. § 3.1(d)(2)(i)(D) (2001), that

specifically permits the BIA to dismiss an appeal summarily

when a petitioner fails to timely file a brief after indicating an

intent to do so. See Rojas-Garcia, 339 F.3d at 821; CasasChavez, 300 F.3d at 1090 n.2; Castillo-Manzanarez, 65 F.3d

at 796 n.3. 

[4] We observe, however, that the same potential for confusion that continues to plague dismissal for lack of specificity

SINGH v. GONZALES 8815
does not necessarily exist in this context. In each case where

we have either bemoaned the potential for confusion or found

a due process violation, the ambiguity stemmed from the

BIA’s strict specificity requirement, the extent of which was

not adequately represented on the face of the BIA’s Notice of

Appeal forms. See, e.g., Vargas-Garcia, 287 F.3d at 885

(observing that “EOIR-26 still fails to tell the alien, especially

a pro se alien . . . that what is really required is what amounts

to a true legal brief complete with reference to authorities—

statutes, regulations, cases, etc.”); Castillo-Manzanarez, 65

F.3d at 796 (stressing the importance of clear instructions);

Padilla-Agustin, 21 F.3d at 976 (emphasizing that

“[p]articularly when the alien is representing himself and has

language difficulties, as is so often the case and is the case

here, a high degree of clarity should be a part of the process

accorded”) (emphasis in original); Toquero, 956 F.2d at 197

(observing that “[t]he instructions do not set out . . . the specificity standard used by the BIA in deciding to summarily dismiss an appeal . . . . [rather] the form suggests that the alien

need not go into much detail by providing only a three-inch

space on which to state his claim of error”); Escobar-Ramos,

927 F.2d at 484 (finding “no indication on the face of [the

BIA’s Notice of Appeal form] or in the instructions on the

reverse side as to the need for this level of specificity”). On

the contrary, the amended regulation merely permits the BIA

to summarily dismiss an appeal if a brief is promised and later

not filed. The Notice of Appeal form quite plainly instructs:

“Your appeal may be summarily dismissed if you indicate . . .

that you will file a separate written brief . . . and . . . you fail

to file the brief . . . and do not reasonably explain such failure.” 

[5] On the facts of this case, we conclude that neither the

briefing, nor the specificity sanctions operated to deprive

Singh of due process. 

B. Due Process

While perhaps wanting for a certain precision and consistency, our prior cases have divided challenges to the BIA’s

8816 SINGH v. GONZALES
specificity sanction largely into two distinct groupings: (1)

those presenting a cognizable due process violation based on

deficiencies in the BIA’s summary dismissal procedures, see,

e.g., Padilla-Agustin, 21 F.3d at 977; Vargas-Garcia, 287

F.3d at 886, and (2) those presenting a claim which is better

characterized as ineffective assistance of counsel. See, e.g.,

Rojas-Garcia, 339 F.3d at 822; Toquero, 956 F.2d at 196. The

instant appeal is quite simply of the latter breed: it turns not

on the clarity of the instructions provided, but rather on the

actions and expressed intentions of Singh’s counsel. 

[6] Even in the context of condemning the potential inadequacy of the BIA’s notice procedures in Toquero we found

“an inquiry into the actions taken by Petitioner’s counsel”

warranted. 956 F.2d at 196. After so inquiring we found no

due process violation, but held that “counsel’s failure to act

justified the BIA’s [summary dismissal], and weaken[ed] any

contention that the procedures used . . . violated due process.”

Id. at 196-97. Similarly, in Rojas-Garcia, we observed that “it

is not correct to assess whether [the petitioner] had adequate

notice without at least considering the actions and expressed

intentions of his counsel.” 339 F.3d at 822. 

[7] Where “the actions of [petitioner’s] counsel make absolutely clear that the failure . . . to file a brief . . . was due, plain

and simple, to . . . counsel’s admitted error and oversight,” we

have consistently held that the failure cannot be attributed to

any deficiency in the BIA’s notice procedures. Id. Rather than

a due process violation based on inadequate notice, the facts

alleged by Singh present a classic instance of ineffective

assistance of counsel. A contrary rule would permit a petitioner to recast, as a due process violation, an ineffective

assistance of counsel claim that is otherwise barred by Matter

of Lozada, 19 I & N Dec. 637 (BIA 1988), or unexhausted

before the BIA. We decline to pave the way for such redefinition in this case. Rather, we are persuaded that, in the ordinary

case, facts such as those alleged by Singh give rise, not to a

claim that the BIA’s summary dismissal procedures denied

SINGH v. GONZALES 8817
the petitioner due process, but instead to a claim that he was

denied effective assistance by his counsel. Accordingly, we

hold that Singh has failed to demonstrate a due process violation as a result of the BIA’s specificity sanction. 

[8] In addition, we conclude that Singh’s due process rights

were not infringed by virtue of the BIA’s briefing sanction.

This conclusion follows logically from our precedents examining the regulatory precursors to the instant regulation.

Reviewing a regulation that permitted the BIA to summarily

dismiss an appeal if the grounds for appeal were either not

clearly set forth on the Notice of Appeal form or in a separate

brief, we held that counsel had a responsibility, after receiving

the government’s motion to dismiss, “to at least file a brief

stating why the Notice was adequate, or explaining the reasons for appeal.” Toquero, 956 F.2d at 196.3

 The same conclusion is even more obvious in this case, where the

regulation at issue expressly permits the BIA to dismiss an

appeal if the “party concerned indicates . . . that he or she will

file a brief . . . and, thereafter, does not file such brief . . . or

reasonably explain his or her failure to do so.” 8 C.F.R.

§ 3.1(d)(2)(i)(D) (2001). After the BIA mailed a briefing

schedule specifying the time frame in which Singh’s former

counsel was required to file his promised brief, counsel similarly had a responsibility either to file the brief, to request an

extension, or to at least explain his failure. Counsel’s failure

to take any action whatsoever for nearly a year justified the

BIA’s summary dismissal. The dismissal did not infringe

upon Singh’s due process rights any more than a dismissal for

3The regulation at issue in Toquero permitted the BIA to “summarily

dismiss any appeal in any case in which . . . the party concerned fails to

specify the reasons for his appeal on Form I-290A (Notice of Appeal) . . .”

or in a separate written brief filed with the BIA. 956 F.2d at 194 & n.2.

In its order dismissing the appeal, the BIA stated: “No brief in support of

[Toquero’s] appeal has been filed. Moreover, counsel for [Toquero] has

failed to state specific reasons for the appeal in the Notice of Appeal

(Form I-290A) and therefore has failed to identify in a meaningful manner

the basis of the . . . appeal.” Id. at 194 (alterations in original). 

8818 SINGH v. GONZALES
failure to prosecute infringes upon the due process rights of

a counseled litigant. As the Supreme Court noted in that context, 

Petitioner voluntarily chose this attorney as his representative in the action, and he cannot now avoid

the consequences of the acts or omissions of this

freely selected agent. Any other notion would be

wholly inconsistent with our system of representative litigation, in which each party is deemed bound

by the acts of his lawyer-agent and is considered to

have “notice of all facts, notice of which can be

charged upon the attorney.” 

Link, 370 U.S. at 633-34 (citing Smith v. Ayer, 101 U.S. 320,

326 (1879)). 

Accordingly, we hold that Singh has not established that

the BIA’s regulations — authorizing summary dismissal for

failure to either file a brief or specify the grounds for appeal

— violated his due process rights. Rather, the facts alleged by

Singh present a classic case of ineffective assistance of counsel. 

C. Ineffective Assistance

[9] Singh argues, in addition, that his former counsel’s ineffective assistance caused him to lose the opportunity either to

perfect his appeal or to file a timely motion to reopen. In particular, he argues that the limitations period applicable to

motions to reopen was subject to equitable tolling, and that

the BIA erred in not ruling on this argument before rejecting

his motion as untimely filed. In light of the BIA’s unexplained failure to address this argument we believe that

remand for additional investigation or explanation is appropriate. See, e.g., INS v. Ventura, 537 U.S. 12, 16 (2002). 

SINGH v. GONZALES 8819
IV. CONCLUSION

For the foregoing reasons, Singh’s due process claim,

premised on the inadequacy of the BIA’s notice procedures,

is hereby denied. The case is remanded to the BIA to consider

whether any or all of the deadlines applicable to his appeal are

subject to equitable tolling in light of the ineffective assistance allegedly provided by Singh’s former counsel. 

PETITION DENIED IN PART, GRANTED IN PART

AND REMANDED. 

8820 SINGH v. GONZALES